CLF.Rt~g
OFFrC7~
BEFORE
THE
ILLINOIS POLLUTION CONTROL BOARD
SEP
0
2
2003
TED HARRISON OIL COMPANY,
))
STATE OF ILLINOIS
Petitioner,
)
Pollution
Control
Board
v.
PCB99-127
)
ILLINOIS ENVIRONMENTALPROTECTION AGENCY,
)
)
Respondent.
)
MOTION FOR AUTHORIZATION OF PAYMENT OF ATTORNEYS’ FEES AS COSTS
OF CORRECTIVE ACTION
NOW COMES Petitioner, TED HARRISON OIL COMPANY, through its undersigned
attorney, and pursuant to 415 ILCS 5/57.8(1), submits its Motion for Authorization ofPayment of
Attorneys’ Fees as Costs of Corrective Action.
In support ofthis Motion, Petitioner states as
follows:
1.
By its Opinion and Order dated July 24, 2003, which was received by Petitioner on
August 4, 2003, this Board reversed the Illinois Environmental Protection Agency’s denial of
$116,297.82 in reimbursement costs to Ted Harrison Oil Company associated with remediation of
leaking underground storage tanks at its facility.
2.
The $116, 297.82 constituted the full amount that Petitioner sought in the
reimbursement appeal.
Accordingly, Petitioner has prevailed in its action before this Board seeking
payment under Title XVI ofthe illinois Environmental Protection Act.
3.
Section
57.8(1)
of the Environmental Protection Act, 415 ILCS
5/57.8(1),
states that
“corrective
action does not include legal defense costs.
Legal defense costs include legal costs
for seeking payment under this Title unless the owner or operator prevails before the Board in
which case the Board may authorize payment oflegal fees.”
4.
Petitioner, having prevailed before this Board, now requests that this Board authorize
the payment of legal fees incurred by Petitioner in this matter from the leaking underground storage
tank fund.
This motion
is being made within
35
days following this Board’s order granting
Petitioner relief herein, and forjurisdictional purposes Petitioner requests that this Board treat this
motion as one for reconsideration or modification, as expressed on page 12 ofthis Board’s July 24,
2003 order.
This motion is being made at this time because until this Board entered its July 24
order Petitioner had not yet prevailed before the Board, and so wasnot authorized to seek these
amounts.
5.
Attached to and incorporated herein is the Affidavit ofStephen F. Hedinger
Verifying Attorneys’ Fees, documenting under oath the attorneys’ fees being sought in this matter,
which total $19,421.75.
WHEREFORE, Petitioner, TED HARRISON OIL COMPANY, requests that this Board
authorize the payment from the leaking underground storage tankfund the amount of$19,421.75
in
attorneys’ fees to Petitioner, TED HARRISON OIL COMPANY, pursuant to 415 ILCS
5/57.8(1).
Respectfully submitted,
Ted Harrison Oil Company,
Petitioner,
By its attorney,
HEDIN~1ER
LAW OFFICE
BY~4~7/4fl
Hedinger Law Office
2601 5. Fifth St.
Springfield, IL 62703
(217) 523-2753 phone
(217) 523-4366 fax
STATE OF ILLINOIS
)
)
SS
COUNTY OF SANGAMON
)
AFFIDAVIT
OF
STEPHEN F. HEDINGER VERIFYING
ATTORNEYS’
FEES
Affiant, Stephen F. Hedinger, being first duly sworn, states as follows:
1.
The statements made herein are based
upon my
personal knowledge, and
I am
competent to
testify hereto.
2.
I am an attorney
duly licensed to practice law in the State of Illinois; and
I am the
attorney ofrecord for Petitioner Ted Harrison Oil Company in the case entitled, Ted Harrison Oil
Company v.
Illinois Environmental Protection Agency, PCB 99-127.
3.
This
affidavit is
being filed with
the Board in
support of Petitioner’s Motion for
Authorization ofPayment ofAttorneys’ Fees as Costs of Corrective Action.
4.
Petitioner’s former attorney, Robert V. Ogren, represented Petitioner in this case
beginning
in or around
May 1999.
He withdrew
as counsel for Petitioner
in May 2000.
Mr.
Ogren billed
a total
amount
of $2,768.75
representing Petitioner with
respect to
this
leaking
underground storage tank reimbursement fund matter.
5.
Attorney Becky S. McCray entered her appearance on behalfof Petitioner on May
30,
2000,
and represented
Petitioner
in
this
case until
she withdrew on
August
18,
2001.
Ms.
McCray billed a total of $1,840.00 during the time she represented Petitioner with respect to
this
leaking underground storage tank action.
6.
Affiant, Attorney Stephen F. Hedinger, started work on this
case in
May 2001,
and entered his appearance on behalf of Petitioner in August 2001, and has represented Petitioner
since that time.
His total time for this case, representing Petitioner in this Fund reimbursement
matter, including paralegal time, is
$14,813.00.
7.
Attached
as Exhibit A is
an accurate summary of the legal work done,
and
legal
fees incurred, with respect to this matter.
The summary has been taken from actual invoices of
the attorneys
involved,
and
thus
reflects
actual work performed and
fees
incurred.
All
time
relates solely to
this LUST fund reimbursement case (PCB 99-127).
The summary reveals the
date the
work was performed
(for
Mr.
Ogren,
the
summery
reflects
the
invoice
dates),
the
description of work performed, the amount of time spent,
and the total fees incurred.
The “time
keeper”
reflects the attorney (ROY means Robert Ogren, BSM means Becky McCray, and
SFH
means Stephen F. Hedinger); the initials ERA are those of Affiant’s paralegal, Elaine Agnew, all
of whose work was conducted
under the
direct
supervision
and
authority of the Affiant.
The
total
number of hours
incurred include
time
spent
drafting pleadings, reviewing the
record,
drafting
a
motion
for
summary
judgment
and
related
documents,
discussing
settlement
possibilities with Respondent, preparing for and participating in the hearing, drafting the closing
brief and reply brief, reviewing Respondent’s briefs and pleadings, reviewing hearing officer and
board orders, and participating in all other litigation
activities, including status conferences.
The
total number of attorney
hours expended was 113.55,
and
the total
number of paralegal hours
expended
was
55.3,
which
were
reasonable
in
light
of
the
amount
of
money
at
stake
($119,297.82).
The hourly rate charged by
attorneys ranged from $95
to
$165,
and
the hourly
rate charged by the paralegal ranged from $50
to
$65.
These rates are commensurate with
the
prevailing rate for general legal services in Springfield, Illinois
for the years represented,
and are
well below market
rates for attorneys concentrating in environmental matters
in Illinois, which
generally
are
about double the
amount
actually charged in
this
case.
Accordingly the
total
amount
of legal
fees
incurred and
sought
herein,
$19,421.75,
is
reasonable,
legitimate
and
appropriate.
2
Further Affiant sayeth not.
St
phen F.
e
mger
Subscribed and sworn to before me, a Notary Public in and for said County and State, this
1’1~dayofAugust, 2003.
My Commission Expires:
c\~
r~c~c~
3
Ted Harrison Oil Company
LUST Fund
Reimbursement
Date
Timekeeper
Description
Time
Total
5/31/1999
IWO
Draft and
work on LUST reimbursement
appeal
4.25
$403.75
6/30/1 999
IWO
Work on
LUST reimbursement appeal
4.75
$522.50
7/31/1999
IWO
Work on
LUST reimbursement appeal
8.75
$962.50
8/31/1 999
FWO
Work on
LUST reimbursement appeal
3.75
$412.50
9/30/1 999
IWO
Work on LUST reimbursement appeal
4.25
$467.50
5/1 6/2000
BSM
Telephone conference with
Ted Harrison
regarding
UST
Fund
appeal;
voice mail to
Dan
0.50
$50.00
5/1 7/2000
BSM
Prepare
for and
meet with
Gretta and Ted
Harrison re: UST
Fund
appeal
2.00
$200.00
5/19/2000
BSM
Research
regarding status
of pending appeal
0.50
$50.00
5/24/2000
BSM
Review
file documents
2.00
$200.00
5/25/2000
BSM
Prepare
entry of appearance;
telephone
conference
with
hearing
officer
John
Knittle
3.00
$300.00
6/5/2000
BSM
Telephone
conference with Ted
Harrison; revise
and
finalize
motion
to continue
hearing;
waiver
of
2.70
$270.00
6/7/2000
BSM
Receipt
and
review PCB
docket sheet;
left
voicemail for
atty
Bob
Ogren
0.30
$30.00
6/13/2000
BSM
Telephone
conference with
Bob Ogren
regarding
background,
strategy
0.50
$50.00
7/5/2000
BSM
Prepare
letter to Bob
Ogren
regarding
transfer
of files
0.50
$50.00
7/1 9/2000
astvl
Receipt and preliminary
review of administrative
record
and files from
Bob Ogren
0.60
$60.00
9/26/2000
BSM
Telephone
conference with
hearing
officer
John
Knittle.
Revise waiver of deadline
for
0.50
$50.00
11/8/2000
BSM
Telephone
conference with
Dan
Merriman
0.20
$20.00
1/5/2001
BSM
Telephone
conference
with
hearing
officer John
Knittle
0.10
$10.00
1/12/2001
BStvl
Prepare for
and
participate in
telephone
status
conference
0.50
$50.00
1/29/200 1
BSM
Receive and
review hearing
officer order
0.20
$20.00
2/28/2001
BSM
Telephone conference
with Ted
Harrison
0.10
$10.00
3/1/2001
BSM
Research
re: LUST
program issues
1.00
$100.00
5/11/2001
BSM
Prepare for
and
participate
in
telephone status
conference
0.50
$50.00
5/25/200
1
BSM
Telephone conference
with
Steve Hedinger;
telephone
conference with
Ted
Harrison
0.50
$50.00
5/29/2001
SF1-I
Telephone
conference with
C.
Rowe;
tic
client;
letter client;
voicemail
B.
McCray;
receive and
reviewMcCrayfax
1.00
$150.00
6/1/2001
BSM
Telephone conference
with
Steve Hedinger;
prepare open
waiver;
prepare
letter to
Steve
Hedinger
1.20
$120.00
6/26/2001
ERA
Review
notes and give to
SFH;
review LUST
reimbursement files
for
meeting;
prepare
notes
for SFH
re: LUST reimbursement
1.30
$65.00
6/26/2001
SF1-I
Telephone atty
McCray
0.80
$120.00
8/6/2001
ERA
Review
file
and notes re:
LUST
reimbursement
costs
1.20
$60.00
Hedinger
Law
Office
Page
1
8/29/2003
Ted Harrison Oil Company
LUST
Fund Reimbursement
8/6/200 1
SFH
Conference with
ERA re:
reimbursement
issues.
0.20
$30.00
8/7/2001
ERA
Continue
review of file
re:
LUST reimbursement
costs
0.80
$40.00
8/8/2001
ERA
Finish
review of file
re: LUST reimbursement
costs;memotoSFHre:same
3.10
$155.00
8/10/2001
SFH
Revise and file
appearance in
reimbursement
case
.
0.10
$15.00
8/13/2001
BSM
Receive and review
Hedinger & Howard
appearance,
motion
for
substitution
of
counsel
1.00
$100.00
8/15/2001
SFH
Telephone
hearing
ofticer
re: status
conference
call re:
reimbursement appeal;
research re:
reimbursement caselaw; tic
IEPA atty
Merriman
re:
background
and status
0.50
$75.00
10/12/2001
SFH
Telephone
conference with IEPA
atty Merriman
and
hearing
officer
0.30
$45.00
10/18/2001
SFH
Receive/review
hearing
officer order
re:
status
of
reimbursement
appeal
0.10
$1 5.00
10/26/2001
SF1-I
Telephone Jeff
@
CW3M
re:
reimbursement
review
0.10
$15.00
10/30/2001
SF1-I
Meeting
with
Jeff from
CW3M
re: file review
re:
reimbursement case
0.20
$30.00
12/7/2001
SFH
Telephone conference with
IEPA atty
Merriman
and
hearing
officer
0.10
$15.00
12/12/2001
SFH
Receive/review
hearing
officer
status
order
0.10
$15.00
1/4/2002
SFH
Review file
and
prepare for
meeting;
meet with
CW3M
and discuss
status of reimbursement
matters
1.00
$150.00
1/18/2002
ERA
Telephone Jeff
@
CW3M
re:
status of review of
LUST reimbursement
case
0.30
$1 5.00
1/29/2002
ERA
Telephone Jeff
@
CW3M
re: status of
reimbursement
package
0.10
.
$5.00
2/25/2002
SF1-I
Receive/review
hearing
officer order
re:
status
0.10
$15.00
4/1 9/2002
SFH
Telephone
IEPA atty Merriman
re:
status;
voicemail
message
hearing
officer
re:
same;
tic
Jeff
@
CW3M
re: same
0.30
$45.00
4/25/2002
SFH
Receive/review
hearing
officer order
re:
status
0.10
$15.00
5/23/2002
SFH
Telephone
IEPA atty
Merriman
&
conference call
Merriman and
hearing
officer re:
status of LUST
Fund
appeal
0.50
$75.00
7/3/2002
SF1-I
Telephone conference with~
hearing officer
and
IEPA
atty Merriman re:
status and
scheduling
0.30
$45.00
8/21/2002
ERA
File
review in
preparation
for filing summary
judgment
motion
0.80
$40.00
8/21/2002
SFH
Conference with
ERA re:
reimbursement case
and
summary judgment;
review file
0.30
$45.00
8/22/2002
SFH
Review
summary judgment
pleadings
(orig.);
tic
Margaretta;
tic
Jeff
@
CW3M
0.60
$90.00
8/30/2002
ERA
Draft
motion
to
set
case for
hearing
0.40
$20.00
Hedinger Law Office
Page2
8/29/2003
Ted Harrison Oil Company
LUST Fund Reimbursement
9/1 6/2002
SFH
Review
and
revise draft
motion
to
set case for
hearing; finalize
and
file
0.30
$45.00
9/1 8/2002
SF1-I
Telephone hearing
officer re: scheduling
hearing;
tic
IEPA atty
Merriman
re:
same
0.30
$45.00
9/26/200 2
SFH
Conference ERA
re: reimbursement
case hearing
0.10
$1 5.00
9/27/2002
SF1-I
Receive/review hearing
officer order scheduling
LUSTFundcaseforhearing
0.10
$15.00
10/23/2002
ERA
Conference with SFH
re: hearing and
witness
lists
0.10
$6.50
1 0/25/2002
ERA
Review file
in preparation
for hearing on
LUST
reimbursement issues
1 .80
$1 17.00
10/28/2002
ERA
Review files re:
LUST reimbursement
in
preparation
for
hearing
1.90
$123.50
1 0/29/2002
ERA
Finish
drafting
notices
of hearing--notice
to
appear
and produce for IEPA
personnel; finish
reviewing previous
LUST reimbursements in
preparation
for hearing
0.50
.
$32.50
1 0/29/2002
SFH
Revise draft witness
list and
notices to
appear/produce;
research
1 .00
$1 65.00
1 0/30/2002
EPA
Continue review
of previous
LUST
reimbursements in
preparation
for
hearing
3.50
$227.50
10/30/2002
SF1-I
Revise and finalize
notices to appear
0.10
$1 6.50
1 0/31/2002
ERA
Continue review
of prior
LUST
reimbursement
packages
in preparation for hearing
2.1 0
$1 36.50
10/31/2002
SF1-I
Conference with
ERA re: record
and hearing
issues
0.50
$82.50
11/1/2002
SFH
Telephone IEPA
atty
Merriman and hearing
officer
re: Wednesday
hearing
0.30
$49.50
11/4/2002
ERA
Research cleanup costs
of
LUST sites on IEPA
website for
hearing
0.30
$19.50
11/4/2002
SFH
Preparation for
hearing;
conference call hearing
officer and
IEPA atty
Merriman
3.50
$577.50
11/5/2002
SFH
Preparation for
hearing;
tic
Jeff
(CW3M); tic
Ted;
review
record
6.50
$1,072.50
11/6/2002
.
SFH
Preparation for
hearing;
conference
Jeff
(CW3M);
conference Ted
& Margaretta;
to
PCB
offices
and
attend
hearing;
calendar
briefing
schedule
6.60
$1,089.00
11/7/2002
ERA
Review administrative
technical
record
for
more
information on
labor and
lab charges
in
preparation
for
brief
2.70
$175.50
11/7/2002
SF1-I
Telephone
atty Merriman;
instructions ERA
re:
preparation
for
briefing/file
review
0.30
$49.50
11/8/2002
ERA
Continue
review
of administrative
technical
record
for
more
information
on
labor and
lab
charges
in
preparation for
brief
2.90
$188.50
11/9/2002
ERA
Finish
review
of administrative technical
record
0.40
$26.00
11/11/2002
ERA
Memo to
SFH
re:
review of administrative
technical
reàord
1.90
$123.50
11/18/2002
SFH
Letters
to
PCB
re:
availability of transcript
0.20
$33.00
Hedinger Law
Office
Page 3
8/29/2003
Ted Harrison Oil Company
LUST Fund Reimbursement
2/29/2002
~
Research
re:
LUST reimbursement cases for brief
0.50
$32.50
12/30/2002
ERA
Continue
research on LUST
Fund reimbursement
cases
for
brief
3.40
$221.00
12/31/2002
ERA
Continue
research
re:
reimbursement cases for
brief
1.20
$78.00
1/5/2003
ERA
Draft
abstract
of
hearing
0.60
$39.00
003
ERA
Continue
drafting
abstract of IPCB
hearing
1 .60
$1 04.00
1/9/2003
ERA
Outline
of points to
include
in
brief
3.50
$227.50
1/9/2003
SFH
Telephone
IEPA atty Merriman;
conference ERA
re:
brief issues
0.40
$66.00
1/10/2003
ERA
Continue
outline
of points
to
include
in
brief
1.80
$117.00
1/12/2003
ERA
Continue
summary for
brief
0.70
$45.50
3/2003
ERA
Finish
summary for
brief
2.40
$1 56.00
1/21/2003
SF1-I
Review
record;
review ERA memo
and notes;
workonbrief
1.10
$181.50
1/23/2003
SR-I
Review
record
and
work on brief
3.00
$495.00
1/24/2003
SF1-I
Work
on
closing
brief;
tic
hearing
officer
re:
additional
time
for
brief
1.30
$214.50
1/27/2003
SFH
Telephone
atty Merriman
and
hearing
officer
re:
additional
briefing
time;
work on
closing
brief
0.50
$82.50
1/28/2003
SFH
Work on
closing brief
0.60
$99.00
1/30/2003
SF1-I
Work on
closing
brief;
research, review
record,
draft,
revise,
finalize
and
file
7.50
$1,237.50
003
ERA
Draft standard
of review
portion
of brief
1.40
$91.00
ERA
Review
CAP, IEPA
letter,
permit, CACR for land
treatment
site
information
0.30
$19.50
SFH
T/c
IEPA atty Merriman
re:
LUST
reimbursement
case briefing
0.20
$33.00
SFH
Telephone
atty
Merriman;
tic
hearing
officer
re:
reply deadline
0.20
$33.00
SF1-I
T/c
atty
Merriman and receive and
review
IEPA
brief re:
LUST
Fund
appeal
0.60
$99.00
ERA
Review
IEPA’s
brief;
gather cases cited
1 .40
$91 .00
ERA
Review
IEPA
brief,
compare information
to
record
1.70
$110.50
ERA
Finish
reviewing
IEPA’s
brief; summary notes
2.30
$149.50
SFH
Conference with
ERA re:
reply brief
0.30
$49.50
SF1-I
Work on
reply brief;
research; review
record
and
response
brief
4.70
$775.50
ERA
Telephone conference with
Greta re LUST
Fund
reimbursement
case
0.10
$6.50
SFH
Work on
reply
brief
2.20
$363.00
SR-I
Draft
reply;
review
record
2.50
$412.50
2/2003
SF1-I
Draft
reply
brief;
revise;
research
5.60
$924.00
3/2003
SFH
Revise
reply
brief;
draft
motion
for
leave
to
file;
finalize
and file
3.40
$561.00
Hedinger Law Office
Page4
8/29/2003
Ted Harrison
Oil Company
LUST Fund
Reimbursement
8/4/2003
SFH
Receive/review
PCB order reversing
IEPA;
research
re:
recovery of atty fees;
tic
CW3M
re:
status
of
site
and
additional
reimbursement
request
i.oo
$165.00
8/21/2003
SF1-I
T/c Rapps
re: LUST Fund
appeal legal
invoices;
receive
and
review
fax
from Terry
Lendy
(at
Rapps)re:same
0.80
$132.00
8/27/2003
SFH
Research
and
review files and
conference with
ERAre: attyfees (LUST Fund
appeal)
0.80
$132.00
8/27/2003
ERA
Review
billing file
in
preparation for
attorney’s
fees
motion
2.90
$188.50
8/28/2003
SFH
Work on
LUST atty fees request;
conference
with
ERA
re:
LUST
reimbursement
issues and
pleadings
0.70
$115.50
8/28/2003
ERA
Finish
review
of fees for atty
fees
motion
to
PCB;
continue research
re:
award
of atty fees
from
PCB;
draft
motion for
atty
fees.
3.40
$221.00
8/29/2003
SF1-I
Review
timesheets for all
LUST
Fund counsel;
revise
draft
motion;
revise
affidavit;
draft
summary of time
5.50
S
$907.50
Hedinger Law
Office
Page
5
8/29/2003
RECEIVED
‘~‘LERK”~
OF1-~TCE
BEFORE THE ILLINOIS POLLUTION CONTROL BOARIY
SEP
022003
TED HARRISON OILCOMPANY,
)
STATE OF ILLINOIS
Petitioner,
)
Pollution
Control
Board
)
v.
S
)
PCB99-127
ILLINOIS ENVIRONMENTAL PROTECTION AGENCY,
)
Respondent.
)
NOTICE OF FILING
AND
PROOF OF
SERVICE
The
undersigned
certifies
that
the
original
and
nine
copies
of Petitioner’s
Motion
for
Authorization of Payment of Attorneys’
Fees as Costs of Corrective Action were served
upon
the
Clerk of the illinois Pollution Control Board, and one copy was served upon the following party of
record and the Hearing Officer in this cause by
enclosing same in envelopes addressed to:
Dorothy Gunn, Clerk
Illinois Pollution Control Board
Carol Sudman, Hearing Officer
James R. Thompson Center
Pollution Control Board
100 W. Randolph St., Suite 11-500
600 South Second Street, Ste. 402
Chicago, IL
60601
Springfield, IL
62704
Daniel P. Merriman
Division of Legal Counsel
Illinois Environmental Protection Agency
1021 N. Grand Ave. East
P.O.
Box 19276
Springfield,
IL 62794-9276
with postage fully prepaid, and
by depositing said
envelopes in
a
U.S.
Post
Office Mail Box
in
Springfield, Illinois before 5:30 p.m.
on the~~.~day
ofAugust, 2003.
~Z
~
HEDINGER LAW
OFFICE
2601 South Fifth Street
Springfield, IL 62703
(217) 523-2753 phone
(217) 523-4366 fax
ThisPleading is being submitted on recycledpaper
